Right of Publicity — Generally

The publicity rights to a “deceased personality’s” name, voice, signature, photograph, or likeness are “property rights” that are freely transferrable, in whole or in part, by contract or by means of a testamentary instrument of the deceased personality effective on the date of his or her death. Civ. Code § 3344.1(b). Where the deceased personality entered into a contract during his or her lifetime by which the deceased personality assigned the rights, in whole or in part, to use his or her name, voice, signature, photograph, or likeness, the contract shall remain valid and enforceable notwithstanding any testamentary instrument. Id.

In the absence of a contract or testamentary instrument transferring the publicity rights to a deceased personality’s name, voice, signature, photograph, or likeness, all such rights shall belong to the following person or persons:

• The surviving spouse of the deceased personality.
• If there is a surviving spouse and surviving children of the deceased personality, one-half of the publicity rights belongs to the surviving spouse and one-half belongs to the surviving children.
• If there is no surviving spouse and no surviving children, the entire interest in the publicity rights of the deceased personality belongs to the surviving parent or parents of the deceased personality.

Civ. Code § 3344.1(d).

The term “deceased personality” is defined to mean:

“[A]ny natural person whose name, voice, signature, photograph, or likeness has commercial value at the time of his or her death, or because of his or her death, whether or not during the lifetime of that natural person the person used his or her name, voice, signature, photograph, or likeness on or in products, merchandise, or goods, or for purposes of advertising or selling, or solicitation of purchase of, products, merchandise, goods, or services.”

Civ. Code § 3344.1(h).

The unauthorized use of the publicity rights of a deceased personality’s name, voice, signature, photograph, or likeness shall entitle the owner of the publicity rights to damages. Civil Code Section 3344.1(a)(1) provides:

“Any person who uses a deceased personality’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without prior consent from the person or persons specified [herein] shall be liable for any damages sustained by the person or persons injured as a result thereof.... Punitive damages may also be awarded to the injured party or parties. The prevailing party or parties in any action under this section shall also be entitled to attorney’s fees and costs.”

“The statute provides a number of exemptions from the requirement of consent to use. Thus a use ‘in connection with any news, public affairs, or sports broadcast or account, or any political campaign’ does not require consent.... Use in a ‘commercial medium’ does not require consent solely because the material is commercially sponsored or contains... paid advertising. ‘Rather it shall be a question of fact whether or not the use... was so directly connected with’ the sponsorship or advertising that it requires consent.... Finally [section 990] provides that ‘[a] play, book, magazine, newspaper, musical composition, film, radio or television program’..., work of ‘political or newsworthy value‘..., ‘[s]ingle and original works of fine art’..., ‘or [a]n advertisement or commercial announcement’ for the above works... are all exempt from the provisions of the statute.” Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal. 4th 387, 393

Right of Privacy — Generally

“[T]he right [of privacy] does not survive but dies with the person.” Hendrickson v. Cal. Newspapers, Inc. (1975) 48 Cal.App.3d 59, 62; Flynn v. Higham (1983) 149 Cal.App.3d 677, 683. Furthermore, survivors generally do not have a right to privacy in their deceased relative’s activities. See Hendrickson v. Cal. Newspapers, Inc., supra, 48 Cal.App.3d at 62; Flynn v. Higham, supra, 149 Cal.App.3d at 683.

Nevertheless, California courts have recognized a narrow exception for “death images,” under which the family members of a decedent do have a privacy interest in the death images of their deceased relative. Catsouras v. Dept. of California Highway Patrol (2010) 181 Cal.App.4th 856, 874 (discussing “impact of death images on the living” and concluding, under persuasive authority, “family members do have their own privacy rights in death images” of a loved one).

Deceased Persons and Data Held by Third Parties

“A particular class of information is private when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity. Such norms create a threshold reasonable expectation of privacy in the data at issue.” Hill v. Nat’l Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.

Financial Data

There is a reasonable expectation of privacy in private financial information. Cobb v. Super. Ct. (1979) 99 Cal.App.3d 543, 550.

“In weighing the privacy interests of the third party, the court should consider the nature of the information sought, its inherent intrusiveness, and any specific showing of a need for privacy, including any specific harm that disclosure of the information might cause. For example, the third party may demonstrate that public disclosure of confidential information would damage its competitive position or embarrass persons not involved in the litigation. Upon request, the court should review the information in camera before production to assess its value to the requesting spouse and the harm disclosure might cause to the third party. Any discovery order should be carefully tailored to protect the interests of the requesting spouse in obtaining a fair resolution of the issues while not unnecessarily invading the privacy of the third party. Also upon request, the court should consider appropriate protective orders.” Schnabel v. Super. Ct. (1993) 5 Cal.4th 704, 714.

Medical and Psychological Care

Although the right to privacy does not survive the death of a person, (Flynn v. Higham (1983) 149 Cal.App.3d 677, 683) a decedent’s patient-physician and psychtherapist-patient privileges, codified at Evid. Code §§ 990 et seq. and 1010 et seq. do survive his death. Rittenhouse v. Super. Ct. (1991) 235 Cal.App.3d 1584.

Endorsememt of a Product

The right of privacy is often invoked in the context of commercial speech when the appropriation of a celebrity likeness creates a false or misleading impression that the celebrity is endorsing the product. Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal. 4th 387, 396. There must be evidence of a direct connection between the alleged use and the commercial purpose. Cross v. Facebook, Inc. (2017) 14 Cal. App. 5th 190, 208.